Memorandum to Department of Justice: Demands to Stand Against Surveillance and Fix RICA!
26 April 2016
On 30 March 2016, a report by the United Nations Human Rights Committee came down hard on South Africa’s surveillance practices1.
The Human Rights Committee expressed concern at the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica), which allows law enforcement, intelligence agencies and the military to intercept communications with the permission of a judge. The Committee expressed concern that mass surveillance takes place outside the law in South Africa, which leaves the most powerful surveillance capacities of the state effectively unregulated. It also noted with concern that the grounds for the issuing of warrants authorising the interception of communications are too vague, and the state’s system for interception of communications lacks transparency and accountability. All these problems make it more likely that the surveillance capacities of the state will be abused.
These concerns are not unique to South Africa, but they demand action from those committed to human rights in South Africa.
The right to privacy is a constitutionally-protected right in itself, contained in Section 14 of the Bill of Rights, but it is also foundational to other rights, including freedom of expression, freedom of association, media freedom and the right to dignity. In a contested constitutional democracy such as South Africa, the right to privacy is crucial to achieving and defending many other rights.
Growing evidence of communication surveillance abuses in South Africa
In South Africa there is growing evidence that the state’s powers of communications surveillance are abused. Examples include:
- Evidence has emerged that investigative journalists from at least two media organisations – Mzilikazi wa Afrika and Stephan Hofstatter from the Sunday Times and Sam Sole from the amaBhungane Centre for Investigative Journalism – have had their phones bugged. Journalists need to protect the identify of their sources to make sure that crucial information about wrongdoing comes to light, but they cannot do so if their communications is intercepted.
- The fear of surveillance has become an increasing feature of many activist struggles. State security structures have openly monitored the activities of civil society formations, especially organisations in poor communities2.
- The 2008 Ministerial Review Commission on the Intelligence services (“The Matthews Commission”) found that security and intelligence agencies have mass surveillance capabilities through an unregulated body called the National Communications Centre (NCC). Mass surveillance is not regulated by RICA or any other law, making it unlawful and unconstitutional3.
- Government agencies, private corporations and individuals have reportedly acquired “Grabber” devices, a surveillance technology capable of imitating a cell phone tower and identifying, locating and reading information from mobile phones in a certain area. “Grabber” technology is not adequately regulated by RICA4.
- Recent reports in the Mail & Guardian point to serious failings in RICA’s safeguards5, and ongoing use of the state’s unregulated mass surveillance capabilities6.
These and other examples are not only potentially criminal but represent a direct violation of fundamental constitutional rights which are at the heart of our democracy. They point to a system that is open to abuse, and in which abuses already take place.
These point to a need for urgent and radical reforms to RICA.
We therefore call on the Department of Justice and Constitutional Development as well as the Parliament of the Republic of South Africa to institute urgent reforms of RICA through an open and public process.
Key demands to reform RICA:
1) Drop SIM card registration
SIM card registration violates privacy in that it limits the ability of citizens to communicate anonymously. It also facilitates the tracking and monitoring of all users by law enforcement and intelligence agencies. Research shows that SIM card registration is not a useful measure to combat criminal activity, but actually fuels the growth of identity-related crime and black markets to service those wishing to remain anonymous7.
2) End mass storage of data
RICA requires telecommunications and internet service providers to store all users’ metadata (a detailed record of all messages and calls sent and received, all internet traffic, etc) for 3 to 5 years. This means that every single communications user in South Africa is effectively subject to mass, untargeted surveillance. This kind of data retention was struck down in the EU by the European Court of Justice on the basis that it led to a serious interference with fundamental rights. Rather, Rica should make provision for targeted preservation orders, whereby communications companies are ordered to store the data only of certain individuals who are under investigation for serious offences.
3) Strengthen judicial protections against surveillance
3.1 Raise the threshold for issuing warrants
RICA provides for warrants to be issued on speculative grounds, requiring only that there are “reasonable grounds to believe” that a serious criminal offence has been or is being or probably will be committed. This provision is open to abuse, and has led in at least one case to a warrant being issued to tap the phone of an investigative journalist. There must be a higher threshold.
3.2 Metadata (archived data about the communication) must be better protected
RICA requires that only a specifically designated judge can issue a warrant to intercept someone’s communications or metadata in real time. However, any sitting magistrate or high court judge can issue a warrant for metadata that has been stored under RICA’s three-to-five year data storage provision. There appears to be no oversight or reporting on how often magistrates and high court judges issue such warrants. Given that metadata is often as sensitive as the content of the communication, the same safeguards should apply, and only a specially designated judge should have authority to issue warrants.
4) Greater transparency
4.1 Users must be notified when their data has been intercepted
RICA’s secrecy provisions forbid any authority from notifying users if their communications have been spied on, even after the warrant has lapsed and any investigation is concluded or at a non-sensitive stage. This creates a situation that is ripe for abuse, as people who are subject to surveillance have no way of knowing that their rights have been violated. All users should be notified; only under exceptional circumstances should the judge have the power to defer notification.
4.2 Network providers and internet service must disclose how often their customers’ are intercepted
The telecommunications industry has accepted the blanket secrecy demanded by RICA and are forbidden from ever disclosing when they have helped law enforcement or intelligence agencies intercept their customers’ communications. RICA must require them to release annual transparency reports revealing annually how often this happens.
4.3 Ensure greater transparency around communications surveillance
There is a general lack of transparency around the uses of the surveillance capacities of the state. Much more information needs to be provided for the public to establish whether the government is using these capacities in ways that are both necessary and proportionate, and that serve legitimate aims. The only form of reporting required under RICA is a brief annual report by the designated RICA judge, which lacks detail and which is withheld by Parliament’s intelligence committee for up to a year before its public release.
5) Better and more oversight
5.1 There needs to be independent oversight of the work of the Rica judge
The Rica judge’s only reporting role an annual report for the Joint Standing Committee on Intelligence on the directions. This turns the judge into an arbiter if his or her own powers. Rather an independent oversight body is needed to review the designated judge’s performance in terms of Rica.
5.2 Appoint key surveillance watchdog figures
It remains a point of great concern that key watchdog roles are vacant, with no clear timeline for them to be filled. The Inspector General of Intelligence has been vacant since April 2015, as a Parliamentary process to appoint a new, independent Inspector General has dragged on unacceptably long. The Information Regulator, a data protection watchdog created through the Protection of Personal Information Act, has yet to be established and there is no clear time frame or sense of urgency in setting up this watchdog role. This has left the public with no adequate protection or oversight against abusive surveillance practices. Strong, independent and transparent candidates must be appointed urgently to those posts.
6) End unregulated mass surveillance
The government has insisted that the activities of the National Communications Centre – which to our knowledge houses the mass surveillance capacities of the state for the purpose of ‘foreign signals intelligence’ gathering – remain unregulated by Rica. This means that the state’s most powerful communications surveillance body is effectively unregulated by law, which opens the door to widespread abuses. The activities of the NCC, and any mass surveillance capabilities of the state, must be strictly regulated under RICA.
Legal reforms are only a first step in ensuring an end to surveillance abuses; much more needs to be done. However, they are a vital step. Unregulated and controlled surveillance are a violation of human rights and pose a serious threat to democratic participation in South Africa.
- R2K and allied organisations have issued a joint statement against surveillance, here.
- The Media Policy & Democracy Project, a joint project of UNISA and the University of Johannesburg, has recently completed a year-long study of surveillance policies in South Africa. Their research and resources are available here.
- MPDP has also produced an activist guide to understanding surveillance, available here.